Professional Documents
Culture Documents
Lecture 6 - 30 Oct.
Lecture 6 - 30 Oct.
EU Criminal Law
by A. Weyembergh
Melloni
West
Jeremy F.
Effectiveness FR Protection
EAW Aranyosi - Caldararu
LM
Lanigan ML
Vilkas Dorobantu
Radu
CJEU, 5 April 2016, Aranyosi and Căldăraru
C-404/15 and C-659/15 PPU (fundamental right not
to be subject to inhuman or degrading tratment on
the gounds of detention conditions)
• Context: a German court needs to decide on the execution of two EAWs
issued by Hungary for prosecution of M. Aranyosi and of a EAW issued by
Romania M. to secure the enforcement of a custodial sentence passed
against M. Căldăraru
• Issue: the referring court has reasons to believe (ECtHR judgments) that, if
surrendered, the requested persons would be subject to conditions of
detention that are in breach of Art. 3 ECHR (Art. 4 Charter)
• But the EAW FD does not include a fundamental rights based- ground for
refusal
• Þ Question to the ECJ: If in such circumstances the execution of the EAW
can or must be refused or made subject to the condition to obtain sufficient
information from the issuing MS that the detention conditions are
compatible with fundamental rights
• CJEU
– Where there is evidence of a real risk of inhuman or degrading treatment of individuals detained in
the issuing MS, the executing authority must assess that risk before deciding on the surrender of the
individual concerned (para. 88).
Two-stage examination !
- (first stage) The executing authority must first assess the existence of a general risk of inhuman or degrading
treatment due to systemic or generalised deficiencies in the conditions of detention in the prison of the issuing
Member State, based on objective, reliable, specific and properly updated information (para 89).
- (second stage) If there is evidence of a real risk in relation to general detention conditions, the executing judicial
authority must assess in a second step whether there are substantial grounds for believing that the requested
person, if surrendered, will in fact exposed to such risk (=individual risk assessment). To that end, the executing
authority must, pursuant to Art. 15 (2) FD request information to the issuing authority on the
conditions in which it is envisaged that the requested person will be detained. The issuing authority is
obliged to provide that information (paras. 92-97).
– If, in light of such information, the executing authority finds that the requested person will be exposed
to a real risk in concreto of inhuman or degrading treatment in the event of his surrender to the
issuing MS, the execution of the EAW must be postponed but it cannot be abandoned (para 98.)
– If the existence of that risk cannot be discounted within a reasonable time, the executing judicial
authority must decide whether the surrender procedure should be brought to an end must be brought
to an end (para. 104).
• Conceptual implications: The first case in which Fundamental Rights argument can overrule effectiveness
of EU Law.
EAW & FR: A User Guide
Execution EAW
Request of
Existence of supplementary
deficiencies in information
detention (A 15 (2) FD)
conditions in -> real risk for
issuing MS the requested
person?
Postponement
-> Refusal if risk
cannot be
discounted in
reasonble time
CJEU, 25 July 2018, Case C-
220/18 PPU, ML
• Þ EAW issued on 31 October 2017 by the Hungarian
Disctrict Court against ML (Hungarian national ) for the
purpose of executing a custodial sentence in Hungary =
German authority requested to execute the EAW
• Þ The German executing authority is however uncertain
whether ML may be surrendered to the Hungarian
authorities = the German court sent a request to obtain
additional information concerning the conditions in which
ML might be detained in Hungary (list of 78 questions…)
• Þ Referring court raises notably the following questions :
- Question related to the impact of the existence of a legal remedy in Hungary: is
it sufficient to rule out the risk of inhuman and degrading treatment?
- + Questions related to the scope of the review that the judicial executing
authority is required to undertake (all prisons/only the prison in which the
requested person is likely to be detained? What value should be given to the
gurantees provided by the issuing authority?, etc.)
=> CJEU provided further guidance
clarifying the Aranyosi test
When the executing judicial authority has information showing systemic or generalised
deficiencies in the conditions of detention in the prisons of the issuing Member State, the
accuracy of these must be verified by the referring court in the light of all the available updated
data.
• Concerning the legal remedy
–the executing judicial authority cannot rule out the existence of a real risk that the person in respect of
whom a European arrest warrant has been issued for the purpose of executing a custodial sentence will be
subjected to inhuman or degrading treatment within the meaning of Article 4 of the Charter, merely
because that person has, in the issuing Member State, a legal remedy permitting him to challenge the
conditions of his detention, although the existence of such a remedy may be taken into account by the
executing judicial authority for the purpose of deciding on the surrender of the person concerned;
• Concerning the scope of the review to be undertaken by the judical executing authority
–the executing judicial authority is required to assess only the conditions of detention in the prisons in
which, according to the information available to it, it is likely that that person will be detained, including
on a temporary or transitional basis;
–the executing judicial authority must assess, to that end, solely the actual and precise conditions of
detention of the person concerned that are relevant for determining whether that person will be exposed
to a real risk of inhuman or degrading treatment within the meaning of Article 4 of the Charter;
–the executing judicial authority may take into account information provided by authorities of the issuing
Member State other than the issuing judicial authority, such as, in particular, an assurance that the
individual concerned will not be subject to inhuman or degrading treatment within the meaning of
Article 4 of the Charter.
+ furthter guidance provided : CJEU, 15
October 2019, Dorobantu, C-128/18
• Continuation of the previous Aranyosi and ML cases
Further clarification provided by the CJEU as to the scope of the
review and the standards against which such review should be
made:
- The assessment by the executing authority cannot be limited to the review
of abvious inadequacies of conditions of detention in the issuing State
- In the absence of EU standards on the matter, the CJEU entirely relies on the
case law of the ECtHR (strong presumption of violation of art. 3 ECHR when
the personal space available to a detainee is below 3m2 in multi-occupancy
cells)
- Altough an important factor, the existence of a mechanism for monitoring
detention conditions in the issuing Member State cannot as such rule out
the risk of inhuman or degrading treatment
- The fundamental right not to be subject to any inhuman or degrading
treatment is absolute and cannot be weight against considerations relating
to the efficacity of judicial cooperation in criminal matters
CJEU, 25 July 2018, LM, C-216/18 PPU
(fundamental right to a fair trial)
– Linked to the requirement of effective judicial protection : the EAW system entails a “dual level
of protection of procedural rights and fundamental rights which must be enjoyed by the
requested person” (para. 67):
Given that it is the responsibility of the ‘issuing judicial authority’ to ensure the second
level of protection, it must be capable of exercising its responsibilities independently,
i.e. without being exposed to the risk that its decision-making power be subject to
external directions or instructions, in particular from the executive. The Court found
that this requirement was not met by German law. The Minister for Justice has indeed an
‘external’ power to issue instructions in respect of German public prosecutors’ offices,
even though in practice this happens very rarely. For the Court’s assessment, it is thus not
relevant that German public prosecutor’s offices act in accordance with the principle of
legality, that there is a judicial remedy available for individuals to challenge the public
prosecutors’ decision to issue an EAW, and that, in the two specific cases at hand, no
instructions was issued by the Ministers of the Länder concerned. Instructions from the
minister for justice to the public prosecutors’ offices concerning the issuing of a European
arrest warrant remains nevertheless, in any event, permieed by the German legislation”
(para. 87).
=> German public prosecutors do not enjoy the degree of independence required by EU law and
are not to be considered as ‘issuing judicial authority’, within the meaning of Article 6(1) of the
EAW Framework Decision.
=> By contrast, the Court found that the Prosecutor General of Lithuania does, however,
provide such a gurantee of independence as they are afforded a sufficient degree of
independence from the executive
Continuation of the saga OG and
PI, and PF…(not exhaustive)
• CJEU, 9 October 2019, NJ, C-489/19 PPU (Austrian
public prosecutor’s office)
• CJEU, 12 December 2019, Joined cases JR (C-
566/19 PPU) and YC (C-626/19) PPU (French public
prosecutor’s office)
• CJEU, 12 December 2019, XD, C-625/19 PPU
(Swedish public prosecutor)
• CJEU, 12 December 2019, ZB, C-627/19 PPU
(Belgian public prosecuror’s office)
The complex body of case law developped by the
Court also raises questions of interpretation….
Also see the STREAM project (Strengthening Trust in the European Criminal
Justice Area through Mutual Recognition and the Streamlined Application of
the EAW) : https://stream-eaw.eu/the-project/